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behalf of the corporation. Where the statements of the private
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
*
G.R. No. 123553. July 13, 1998.
(CA-G.R. No. 33291)
NORA A. BITONG, petitioner, vs. COURT OF APPEALS
(FIFTH DIVISION), EUGENIA D. APOSTOL, JOSE A.
APOSTOL, MR. & MS. PUBLISHING CO., LETTY J.
MAGSANOC, AND ADORACION G. NUYDA, respondents.
(CA-G.R. No. 33873)
NORA A. BITONG, petitioner, vs. COURT OF APPEALS
(FIFTH DIVISION) and EDGARDO B. ESPIRITU,
respondents.
Actions; Pleadings and Practice; Evidence; Admissions; A
party whose pleading is admitted as an admission against interest
is entitled to overcome by evidence the apparent inconsistency, and
it is competent for the party against whom the pleading is offered
to show that the statements were inadvertently made or were made
under a mistake of fact.—A party whose pleading is admitted as
an admission against interest is entitled to overcome by evidence
the apparent inconsistency, and it is competent for the party
against whom the pleading is offered to show that the statements
were inadvertently made or were made under a mistake of fact. In
addition, a party against whom a single clause or paragraph of a
pleading is offered may have the right to introduce other
paragraphs which tend to destroy the admission in the paragraph
offered by the adversary.
Same; Same; Same; Same; Where the statements of a party
were qualified with phrases such as, “insof ar as they are limited,
qualified and/or expanded by,” “the truth be ing as stated in the
Affirmative Allegations/Defenses of this Answer” they cannot be
considered definite and certain enough and cannot be construed as
judicial admissions.—The answer of private respondents shows
that there was no judicial admission that petitioner was a
stockholder of Mr. & Ms. to entitle her to file a derivative suit on
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respondents were qualified with phrases such as, “insofar as they
are limited, qualified and/or expanded by,” “the truth being as
stated in the Affirmative Allega-
_______________
503
* FIRST DIVISION.
504
504 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
tions/Defenses of this Answer” they cannot be considered definite
and certain enough, cannot be construed as judicial admissions.
Same; Same; Same; Same; Where part of a statement of a
party is used against him as an admission, the court should weigh
any other portion connected with the statement, which tends to
neutralize the portion which is against interest—while admission
is admissible in evidence, its probative value is to be determined
from the whole statement and others intimately related to or
connected therewith as an integrated unit.—When taken in its
totality, the Amended Answer to the Amended Petition, or even
the Answer to the Amended Petition alone, clearly raises an issue
as to the legal personality of petitioner to file the complaint.
Every alleged admission is taken as an entirety of the fact which
makes for the one side with the qualifications which limit, modify
or destroy its effect on the other side. The reason for this is, where
part of a statement of a party is used against him as an
admission, the court should weigh any other portion connected
with the statement, which tends to neutralize or explain the
portion which is against interest. In other words, while the
admission is admissible in evidence, its probative value is to be
determined from the whole statement and others intimately
related or connected therewith as an integrated unit. Although
acts or facts admitted do not require proof and cannot be
contradicted, however, evidence aliunde can be presented to show
that the admission was made through palpable mistake. The rule
is always in favor of liberality in construction of pleadings so that
the real matter in dispute may be submitted to the judgment of
the court.
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Same; Same; Same; Words and Phrases; Interlocutory Orders;
An interlocutory order refers to something between the
commencement and end of the suit which decides some point or
matter but it is not the final decision of the whole controversy.—
For, an interlocutory order refers to something between the
commencement and end of the suit which decides some point or
matter but it is not the final decision of the whole controversy.
Thus, even though the 6 December 1990 Order was adverse to
private respondents, they had the legal right and option not to
elevate the same to the SEC En Banc but rather to await the
decision which resolves all the issues raised by the parties and to
appeal therefrom by assigning all errors that might have been
committed by the Hearing Panel.
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
Corporation Law; Stock Certificates; A mere typewritten
statement advising a stockholder of the extent of his ownership in
a corporation without qualification and/or authentication cannot
be considered as a formal certificate of stock.—Section 63 of The
Corporation Code expressly provides—x x x This provision above
quoted envisions a formal certificate of stock which can be issued
only upon compliance with certain requisites. First, the
certificates must be signed by the president or vice-president,
countersigned by the secretary or assistant secretary, and sealed
with the seal of the corporation. A mere typewritten statement
advising a stockholder of the extent of his ownership in a
corporation without qualification and/or authentication cannot be
considered as a formal certificate of stock. Second, delivery of the
certificate is an essential element of its issuance. Hence, there is
no issuance of a stock certificate where it is never detached from
the stock books although blanks therein are properly filled up if
the person whose name is inserted therein has no control over the
books of the company. Third, the par value, as to par value
shares, or the full subscription as to no par value shares, must
first be fully paid. Fourth, the original certificate must be
surrendered where the person requesting the issuance of a
certificate is a transferee from a stockholder.
Same; Same; Stock and Transfer Books; Evidence; Books and
records of a corporation which include even the stock and transfer
book are generally admissible in evidence in favor of or against the
corporation and its members to prove the corporate acts, its
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financial status and other matters including one’s status as a
stockholder.—The certificate of stock itself once issued is a
continuing affirmation or representation that the stock described
therein is valid and genuine and is at least prima facie evidence
that it was legally issued in the absence of evidence to the
contrary. However, this presumption may be rebutted. Similarly,
books and records of a corporation which include even the stock
and transfer book are generally admissible in evidence in favor of
or against the corporation and its members to prove the corporate
acts, its financial status and other matters including one’s status
as a stockholder. They are ordinarily the best evidence of
corporate acts and proceedings.
Same; Same; Same; Same; Parol Evidence; The books and
records of a corporation are not conclusive even against the
505 corporation but are prima facie evidence only—parol evidence may
be admitted to supply omissions in the records, explain
ambiguities, or show what
505
506
506 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
transpired where no records were kept, or in some cases where
such records were contradicted.—However, the books and records
of a corporation are not conclusive even against the corporation
but are prima facie evidence only. Parol evidence may be admitted
to supply omissions in the records, explain ambiguities, or show
what transpired where no records were kept, or in some cases
where such records were contradicted. The effect of entries in the
books of the corporation which purport to be regular records of the
proceedings of its board of directors or stockholders can be
destroyed by testimony of a more conclusive character than mere
suspicion that there was an irregularity in the manner in which
the books were kept.
Same; Same; Same; Stock issued without authority and in
violation of law is void and confers no rights on the person to
whom it is issued and subjects him to no liabilities.—The
foregoing considerations are founded on the basic principle that
stock issued without authority and in violation of law is void and
confers no rights on the person to whom it is issued and subjects
him to no liabilities. Where there is an inherent lack of power in
the corporation to issue the stock, neither the corporation nor the
person to whom the stock is issued is estopped to question its
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validity since an estoppel cannot operate to create stock which
under the law cannot have existence.
Same; Same; Same; A formal certificate of stock could not be
considered issued in contemplation of law unless signed by the
president or vice-president and countersigned by the secretary or
assistant secretary.—Based on the foregoing admission of
petitioner, there is no truth to the statement written in
Certificate of Stock No. 008 that the same was issued and signed
on 25 July 1983 by its duly authorized officers specifically the
President and Corporate Secretary because the actual date of
signing thereof was 17 March 1989. Verily, a formal certificate of
stock could not be considered issued in contemplation of law
unless signed by the president or vice-president and
countersigned by the secretary or assistant secretary.
Same; Same; Same; When a Certificate of Stock was
admittedly signed and issued only on 17 March 1989 and not on
25 July 1983, the certificate has no evidentiary value for the
purpose of proving that a stockholder was such since 1983 up to
1989.—In this case, contrary to petitioner’s submission, the
Certificate of Stock No. 008 was only legally issued on 17 March
1989 when it was actually signed by the President of the
corporation, and not before that date. While a cer-
507
VOL. 292, JULY 13, 1998 507
Bitong vs. Court of Appeals (Fifth Division)
tificate of stock is not necessary to make one a stockholder, e.g.,
where he is an incorporator and listed as stockholder in the
articles of incorporation although no certificate of stock has yet
been issued, it is supposed to serve as paper representative of the
stock itself and of the owner’s interest therein. Hence, when
Certificate of Stock No. 008 was admittedly signed and issued
only on 17 March 1989 and not on 25 July 1983, even as it
indicates that petitioner owns 997 shares of stock of Mr. & Ms.,
the certificate has no evidentiary value for the purpose of proving
that petitioner was a stockholder since 1983 up to 1989.
Same; Same; Trusts; It is a settled rule that the trustee should
endorse the stock certificate to validate the cancellation of her
share and to have the transfer recorded in the books of the
corporation.—And, there is nothing in the records which shows
that JAKA had revoked the trust it reposed on respondent
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Eugenia D. Apostol. Neither was there any evidence that the
principal had requested her to assign and transfer the shares of
stock to petitioner. If it was true that the shares of stock covered
by Certificate of Stock No. 007 had been transferred to petitioner,
the person who could legally endorse the certificate was private
respondent Eugenia D. Apostol, she being the registered owner
and trustee of the shares of stock covered by Certificate of Stock
No. 007. It is a settled rule that the trustee should endorse the
stock certificate to validate the cancellation of her share and to
have the transfer recorded in the books of the corporation.
Same; Same; Requirements for a Valid Transfer of Stocks.—
Thus, for a valid transfer of stocks, the requirements are as
follows: (a) There must be delivery of the stock certificate; (b) The
certificate must be endorsed by the owner or his attorney-in-fact
or other persons legally authorized to make the transfer; and, (c)
To be valid against third parties, the transfer must be recorded in
the books of the corporation. At most, in the instant case,
petitioner has satisfied only the third requirement. Compliance
with the first two requisites has not been clearly and sufficiently
shown.
Same; Same; Considering that the requirements provided
under Sec. 63 of the Corporation Code should be mandatorily
complied with, the rule on presumption of regularity cannot apply.
—Considering that the requirements provided under Sec. 63 of
The Corporation Code should be mandatorily complied with, the
rule on
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508 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
presumption of regularity cannot apply. The regularity and
validity of the transfer must be proved. As it is, even the
credibility of the stock and transfer book and the entries thereon
relied upon by petitioner to show compliance with the third
requisite to prove that she was a stockholder since 1983 is highly
doubtful.
Same; Same; Dividends; When a dividend is declared, it
belongs to the person who is the substantial and beneficial owner
of the stock at the time regardless of when the distribution profit
was earned.—That JAKA retained its ownership of its Mr. & Ms.
shares was clearly shown by its receipt of the dividends issued in
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December 1986. This only means, very obviously, that Mr. & Ms.
shares in question still belonged to JAKA and not to petitioner.
For, dividends are distributed to stockholders pursuant to their
right to share in corporate profits. When a dividend is declared, it
belongs to the person who is the substantial and beneficial owner
of the stock at the time regardless of when the distribution profit
was earned.
Same; Actions; Derivative Suits; The power to sue and be sued
in any court by a corporation even as a stockholder is lodged in the
board of directors that exercises its corporate powers and not in the
president or officer thereof.—The admissions of a party against his
interest inscribed upon the record books of a corporation are
competent and persuasive evidence against him. These
admissions render nugatory any argument that petitioner is a
bona fide stockholder of Mr. & Ms. at any time before 1988 or at
the time the acts complained of were committed. There is no
doubt that petitioner was an employee of JAKA as its managing
officer, as testified to by Senator Enrile himself. However, in the
absence of a special authority from the board of directors of JAKA
to institute a derivative suit for and in its behalf, petitioner is
disqualified by law to sue in her own name. The power to sue and
be sued in any court by a corporation even as a stockholder is
lodged in the board of directors that exercises its corporate powers
and not in the president or officer thereof.
Same; Same; Same; The stockholder’s right to institute a
derivative suit is not based on any express provision of the
Corporation Code but is impliedly recognized when the law makes
corporate directors or officers liable for damages suffered by the
corporation and its stockholders for violation of their fiduciary
duties.—It is well settled in this jurisdiction that where corporate
directors are guilty of a breach of trust, not of mere error of
judgment or abuse of discretion, and intracorporate remedy is
futile or useless, a stockholder may
509
VOL. 292, JULY 13, 1998 509
Bitong vs. Court of Appeals (Fifth Division)
institute a suit in behalf of himself and other stockholders and for
the benefit of the corporation, to bring about a redress of the
wrong inflicted directly upon the corporation and indirectly upon
the stockholders. The stockholder’s right to institute a derivative
suit is not based on any express provision of The Corporation
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Code but is impliedly recognized when the law makes corporate
directors or officers liable for damages suffered by the corporation
and its stockholders for violation of their fiduciary duties.
Same; Same; Same; A stockholder’s suit cannot prosper
without first complying with the legal requisites for its institution,
the most important being the bona fide ownership by a stockholder
of a stock in his own right at the time of the transaction
complained of which invests him with standing to institute a
derivative action for the benefit of the corporation.—The basis of a
stockholder’s suit is always one in equity. However, it cannot
prosper without first complying with the legal requisites for its
institution. The most important of these is the bona fide
ownership by a stockholder of a stock in his own right at the time
of the transaction complained of which invests him with standing
to institute a derivative action for the benefit of the corporation.
PETITIONS for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
     Castillo, Zamora & Poblador for petitioner.
          Azcuna, Yorac, Sarmiento, Arroyo & Chua Law
Offices for E.B. Espiritu.
          Bello, Gozon, Elma, Parel, Asuncion & Lucila for
E.D. Apostol and J.Z. Apostol.
BELLOSILLO, J.:
1
These twin cases originated from a derivative suit filed
bypetitioner Nora A. Bitong before the Securities and
Exchange
_______________
1 The derivative suit, docketed as SEC Case No. 03604, was commenced
on 5 July 1989 through a petition for injunction, accounting and damages
with prayer for the appointment of a man-
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510 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
Commission (SEC hereafter) allegedly for the benefit of
private respondent Mr. & Ms. Publishing Co., Inc. (Mr. &
Ms.hereafter), among others, to hold respondent spouses
2
EugeniaD. Apostol and Jose A. Apostol liable for fraud,
misrepresentation, disloyalty, evident bad faith, conflict of
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interest andmismanagement in directing the affairs of Mr.
& Ms. to thedamage and prejudice of Mr. & Ms. and its
stockholders, including petitioner.
Alleging before the SEC that she had been the Treasurer
and a Member of the Board of Directors of Mr. & Ms. from
the time it was incorporated on 29 October 1976 to 11 April
1989, and was the registered owner of 1,000 shares of stock
out of the 4,088 total outstanding shares, petitioner
complained of irregularities committed from 1983 to 1987
by Eugenia D. Apostol, President and Chairperson of the
Board of Directors. Petitioner claimed that except for the
sale of the name Philippine Inquirer to Philippine Daily
Inquirer (PDI hereafter) all other transactions and
agreements entered into by Mr. & Ms. with PDI were not
supported by any bond and/or stockholders’ resolution.
And, upon instructions of Eugenia D. Apostol, Mr. & Ms.
made several cash advances to PDI on various occasions
amounting to P3.276 million. On some of these borrowings
PDI paid no interest whatsoever. Despite the fact that the
advances made by Mr. & Ms. to PDI were booked as
advances to an affiliate, there existed no board or
stockholders’ resolution, contract nor any other document
which could legally authorize the creation of and support to
an affiliate.
Petitioner further alleged that respondents Eugenia and
Jose Apostol were stockholders, directors and officers in
both Mr. & Ms. and PDI. In fact on 2 May 1986
respondents Eugenia D. Apostol, Leticia J. Magsanoc and
Adoracion G. Nuyda subscribed to PDI shares of stock at
P50,000.00 each or a total
_______________
agement committee and for a writ of preliminary injunction and a
temporary restraining order.
2 The name of respondent Jose Apostol has been interchangeably
designated in the records as “Jose A. Apostol” and as “Jose Z. Apostol.” For
uniformity, “Jose A. Apostol” or simply “Jose Apostol” is used in this
Decision.
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
of P150,000.00. The stock subscriptions were paid for by
Mr. & Ms. and initially treated as receivables from officers
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and employees. But, no payments were ever received from
respondents, Magsanoc and Nuyda.
The petition principally sought to (a) enjoin respondents
Eugenia D. Apostol and Jose A. Apostol from further acting
as president-director and director, respectively, of Mr. &
Ms. and disbursing any money or funds except for the
payment of salaries and similar expenses in the ordinary
course of business, and from disposing of their Mr. & Ms.
shares; (b) enjoin respondents Apostol spouses, Magsanoc
and Nuyda from disposing of the PDI shares of stock
registered in their names; (c) compel respondents Eugenia
and Jose Apostol to account for and reconvey all profits and
benefits accruing to them as a result of their improper and
fraudulent acts; (d) compel respondents Magsanoc and
Nuyda to account for and reconvey to Mr. & Ms. all shares
of stock paid from cash advances from it and all accessions
or fruits thereof; (e) hold respondents Eugenia and Jose
Apostol liable for damages suffered by Mr. & Ms. and the
other stockholders, including petitioner, by reason of their
improper and fraudulent acts; (f) appoint a management
committee for Mr. & Ms. during the pendency of the suit to
prevent further dissipation and loss of its assets and funds
as well as paralyzation of business operations; and, (g)
direct the management committee for Mr. & Ms. to file the
necessary action to enforce its rights against PDI and other
third parties.
Private respondents Apostol spouses, Magsanoc, Nuyda,
and Mr. & Ms., on the other hand, refuted the allegations
of petitioner by starting with a narration of the beginnings
of Mr. & Ms. They recounted that on 9 March 1976 Ex
Libris Publishing Co., Inc. (Ex Libris hereafter) was
incorporated for the purpose of publishing a weekly
magazine. Its original principal stockholders were spouses
Senator Juan Ponce Enrile (then Minister of National
Defense) and Cristina Ponce Enrile through Jaka
Investments Corporation (JAKA hereafter), and
respondents Eugenia and Jose Apostol. When Ex Libris
suffered financial difficulties, JAKA and the Apostols,
512
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512 SUPREME COURT REPORTS ANNOTATED
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Bitong vs. Court of Appeals (Fifth Division)
together with new investors Luis Villafuerte and Ramon
Siy, restructured Ex Libris by organizing a new corporation
known as Mr. & Ms.
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The original stockholders of Mr. & Ms., i.e., JAKA, Luis
Villafuerte, Ramon Siy, the Apostols and Ex Libris
continued to be virtually the same up to 1989. Thereafter it
was agreed among them that, they being close friends, Mr.
& Ms. would be operated as a partnership or a close
corporation; respondent Eugenia D. Apostol would manage
the affairs of Mr. & Ms.; and, no shares of stock would be
sold to third parties without first offering the shares to the
other stockholders so that transfers would be limited to and
only among the original stockholders.
Private respondents also asserted that respondent
Eugenia D. Apostol had been informing her business
partners of her actions as manager, and obtaining their
advice and consent. Consequently the other stockholders
consented, either expressly or impliedly, to her
management. They offered no objections. As a result, the
business prospered. Thus, as shown in a statement
prepared by the accounting firm Punongbayan and
Araullo, there were increases from 1976 to 1988 in the total
assets of Mr. & Ms. from P457,569.00 to P10,143,046.00; in
the total stockholders’ equity from P203,378.00 to
P2,324,954.00; and, in the net sales, from P301,489.00 to
P16,325,610.00. Likewise, cash dividends were distributed
and received by the stockholders.
Private respondents further contended that petitioner,
being merely a holder-in-trust of JAKA shares, only
represented and continued to represent JAKA in the board.
In the beginning, petitioner cooperated with and assisted
the management until mid-1986 when relations between
her and her principals on one hand, and respondent
Eugenia D. Apostol on the other, became strained due to
political differences. Hence from mid-1986 to mid-1988
petitioner refused to speak with respondent Eugenia D.
Apostol, and in 1988 the former became openly critical of
the management of the latter. Nevertheless, respondent
Eugenia D. Apostol always made avail-
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
able to petitioner and her representatives all the books of
the corporation.
Private respondents averred that all the PDI shares
owned by respondents Eugenia and Jose Apostol were
acquired through their own private funds and that the loan
of P750,000.00 by PDI from Mr. & Ms. had been fully paid
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with 20% interest per annum. And, it was PDI, not Mr. &
Ms., which loaned off P250,000.00 each to respondents
Magsanoc and Nuyda. Private respondents further argued
that petitioner was not the true party to this case, the real
party being JAKA which continued to be the true
stockholder of Mr. & Ms.; hence, petitioner did not have the
personality to initiate and prosecute the derivative suit
which, consequently, must be dismissed. 3
On 6 December 1990, the SEC Hearing Panel issued a
writ of preliminary injunction enjoining private
respondents from disbursing any money except for the
payment of salaries and other similar expenses in the
regular course of business. The Hearing Panel also
enjoined respondent Apostol spouses, Nuyda and Magsanoc
from disposing of their PDI shares, and further ruled—
x x x respondents’ contention that petitioner is not entitled to the
provisional reliefs prayed for because she is not the real party in
interest x x x x is bereft of any merit. No less than respondents’
Amended Answer, specifically paragraph V, No. 8 on Affirmative
Allegations/Defenses states that ‘The petitioner being herself a
minor stockholder and holder-in-trust of JAKA shares
represented and continues to represent JAKA in the Board.’ This
statement refers to petitioner sitting in the board of directors of
Mr. & Ms. in two capacities, one as a minor stockholder and the
other as the holder in trust of the shares of JAKA in Mr. & Ms.
Such reference alluded to by the respondents indicates an
admission on respondents’ part of the petitioner’s legal
personality to file a derivative suit for the benefit of the
respondent Mr. & Ms. Publishing Co., Inc.
_______________
3 The SEC Hearing Panel was composed of Hearing Officers Josefina L.
Pasay-Paz, Antonio M. Esteves and Manuel P. Perea.
514
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514 SUPREME COURT REPORTS ANNOTATED
513 Bitong vs. Court of Appeals (Fifth Division)
The Hearing Panel however denied petitioner’s prayer for
the constitution of a management committee.
On 25 March 1991 private respondents filed a Motion to
Amend Pleadings to Conform to Evidence alleging that the
issue of whether petitioner is the real party-in-interest had
been tried by express or implied consent of the parties
through the admission of documentary exhibits presented
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by private respondents proving that the real party-in-
interest was JAKA, not petitioner Bitong. As such, No. 8,
par. V (Affirmative Allegations/Defenses), Answer to the
Amended Petition, was stipulated due to inadvertence and
excusable mistake and should be amended. On 10 October
1991 the Hearing Panel denied the motion for amendment.
Petitioner testified at the trial that she became the
registered and beneficial owner of 997 shares of stock of
Mr. & Ms. out of the 4,088 total outstanding shares after
she acquired them from JAKA through a deed of sale
executed on 25 July 1983 and recorded in the Stock and
Transfer Book of Mr. & Ms. under Certificate of Shares of
Stock No. 008. She pointed out that Senator Enrile decided
that JAKA should completely divest itself of its holdings in
Mr. & Ms. and this resulted in the sale to her of JAKA’s
interest and holdings in that publishing firm.
Private respondents refuted the statement of petitioner
that she was a stockholder of Mr. & Ms. since 25 July 1983
as respondent Eugenia D. Apostol signed Certificate of
Stock No. 008 only on 17 March 1989, and not on 25 July
1983. Respondent Eugenia D. Apostol explained that she
stopped using her long signature (Eugenia D. Apostol) in
1987 and changed it to E.D. Apostol, the signature which
appeared on the face of Certificate of Stock No. 008 bearing
the date 25 July 1983. And, since the Stock and Transfer
Book which petitioner presented in evidence was not
registered with the SEC, the entries therein including
Certificate of Stock No. 008 were fraudulent. Respondent
Eugenia D. Apostol claimed that she had not seen the
Stock and Transfer Book at any time until 21 March 1989
when it was delivered by petitioner herself to the office of
Mr. & Ms., and that petitioner repeatedly referred to
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
Senator Enrile as “my principal” during the Mr. & Ms.
board meeting of 22 September 1988, seven (7) times no
less.
On 3 August 1993, after trial on the merits, the SEC
Hearing Panel dismissed the derivative suit filed by
petitioner and dissolved the writ of preliminary injunction
barring private respondents from disposing of their PDI
shares and any of Mr. & Ms. assets. The Hearing Panel
ruled that there was no serious mismanagement of Mr. &
Ms. which would warrant drastic corrective measures. It
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gave credence to the assertion of respondent Eugenia D.
Apostol that Mr. & Ms. was operated like a close
corporation where important matters were discussed and
approved through informal consultations at breakfast
conferences. The Hearing Panel also concluded that while
the evidence presented tended to show that the real party-
in-interest indeed was JAKA and/or Senator Enrile, it
viewed the real issue to be the alleged mismanagement,
fraud and conflict of interest on the part of respondent
Eugenia D. Apostol, and allowed petitioner to prosecute the
derivative suit if only to resolve the real issues. Hence, for
this purpose, the Hearing Panel considered petitioner to be
the real party-in-interest.
On 19 August 1993 respondent Apostol spouses sold the
PDI shares registered in the name of their holding
company, JAED Management Corporation, to Edgardo B.
Espiritu. On 25 August 1993 petitioner Bitong appealed to
the SEC En Banc. 4
On 24 January 1994 the SEC En Banc reversed the
decision of the Hearing Panel and, among others, ordered
private respondents to account for, return and deliver to
Mr. & Ms. any and all funds and assets that they disbursed
from the coffers of the corporation including shares of
stock, profits, dividends and/or fruits that they might have
received as a result of their investment in PDI, including
those arising from the P150,000.00 advanced to
respondents Eugenia D. Apostol,
_______________
4 Associate Commissioners Rodolfo L. Samarista, Merle O. Manuel, Fe
Eloisa C. Gloria and Perfecto R. Yasay, Jr., concurred in the Order, while
Chairman Rosario N. Lopez did not participate.
515
516
515
516 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
Leticia J. Magsanoc and Adoracion G. Nuyda; account for
and return any profits and fruits of all amounts irregularly
or unlawfully advanced to PDI and other third persons;
and, cease and desist from managing the affairs of Mr. &
Ms. for reasons of fraud, mismanagement, disloyalty and
conflict of interest.
The SEC En Banc also declared the 19 August 1993 sale
of the PDI shares of JAED Management Corporation to
Edgardo B. Espiritu to be tainted with fraud, hence, null
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and void, and considered Mr. & Ms. as the true and lawful
owner of all the PDI shares acquired by respondents
Eugenia D. Apostol, Magsanoc and Nuyda. It also declared
all subsequent transferees of such shares as trustees for
the benefit of Mr. & Ms. and ordered them to forthwith
deliver said shares to Mr. & Ms.
Consequently, respondent Apostol spouses, Magsanoc,
Nuyda, and Mr. & Ms. filed a petition for review before
respondent Court of Appeals, docketed as CA-GR No. SP
33291, while respondent Edgardo B. Espiritu filed a
petition for certiorari and prohibition also before
respondent Court of Appeals, docketed as CA-GR No. SP
33873. On 8 December 1994 the two (2) petitions were
consolidated.
On 31 August 1995 respondent appellate court rendered
a decision reversing the SEC En Banc and held that from
the evidence on record petitioner was not the owner of any
share of stock in Mr. & Ms. and therefore not the real
party-in-interest to prosecute the complaint she had
instituted against private respondents. Accordingly,
petitioner alone and by herself as an agent could not file a
derivative suit in behalf of her principal. For not being the
real party-in-interest, petitioner’s complaint did not state a
cause of action, a defense which was never waived; hence,
her petition should have been dismissed. Respondent
appellate court ruled that the assailed orders of the SEC
were issued in excess
5
of jurisdiction, or want of it, and thus
were null and void. On 18 January 1996,
_______________
5 CA Decision penned by Associate Justice Pedro A. Ramirez, Chairman
of the Eighth Division (Division of Five), with Associate
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
petitioner’s motion for reconsideration was denied for lack
of merit.
Before this Court, petitioner submits that in paragraph
1 under the caption “I. The Parties” of her Amended
Petition before the SEC, she stated that she was a
stockholder and director of Mr. & Ms. In par. 1 under the
caption “II. The Facts” she declared that she “is the
registered owner of 1,000 shares of stock of Mr. & Ms. out
of the latter’s 4,088 total outstanding shares” and that she
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was a member of the Board of Directors of Mr. & Ms. and
treasurer from its inception until 11 April 1989. Petitioner
contends that private respondents did not deny the above
allegations in their answer and therefore they are
conclusively bound by this judicial admission.
Consequently, private respondents’ admission that
petitioner has 1,000 shares of stock registered in her name
in the books of Mr. & Ms. forecloses any question on her
status and right to bring a derivative suit on behalf of Mr.
& Ms.
Not necessarily. A party whose pleading is admitted as
an admission against interest is entitled to overcome by
evidence the apparent inconsistency, and it is competent
for the party against whom the pleading is offered to show
that the statements were inadvertently made or were made
under a mistake of fact. In addition, a party against whom
a single clause or paragraph of a pleading is offered may
have the right to introduce other paragraphs which tend to
destroy the6
admission in the paragraph offered by the
adversary.
The Amended Petition before the SEC alleges—
I. THE PARTIES
1. Petitioner is a stockholder and director of Mr. & Ms. x x x x
_______________
Justices Jaime M. Lantin and Cancio C. Garcia concurring, and
Associate Justices Lourdes K. Tayao-Jaguros and Eugenio S. Labitoria
dissenting.
6 29A AmJur 2d, p. 143.
518
517
518 SUPREME COURT REPORTS ANNOTATED
517 Bitong vs. Court of Appeals (Fifth Division)
II. THE FACTS
1. Petitioner is the registered owner of 1,000 shares of stock of Mr.
& Ms. out of the latter’s 4,088 total outstanding shares.
Petitioner, at all times material to this petition, is a member of
the Board of Directors of Mr. & Ms. and from the inception of Mr.
& Ms. until 11 April 1989 was its treasurer x x x x
On the other hand, the Amended Answer to the Amended
Petition states—
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I. PARTIES 4. The above-named original stockholders of respondent Mr. &

Ms. continue to be virtually the same stockholders up to this date
1. Respondents admit the allegations contained in Caption I, pars. xxxx
1 to 4 of the Petition referring to the personality, addresses and 8. The petitioner being herself a minor stockholder and holder-
capacity of the parties to the petition except x x x x but qualify in-trust of JAKA shares, represented and continues to represent
said admission insofar as they are limited, qualified and/or JAKA in the Board x x x x
expanded by allegations in the Affirmative Allegations/Defenses x 21. Petitioner Nora A. Bitong is not the true party to this case,
xxx the true party being JAKA Investments Corporation which
continues to be the true stockholder of respondent Mr. & Ms.
II. THE FACTS
Publishing Co., Inc., consequently, she does not have the
1. Respondents admit paragraph 1 of the Petition, but qualify personality to initiate and prosecute this derivative suit, and
said admission as to the beneficial ownership of the shares of should therefore be dismissed x x x x
stock registered in the name of the petitioner, the truth being as
stated in the Affirmative Allegations/Defenses of this Answer x x
The answer of private respondents shows that there was no
judicial admission that petitioner was a stockholder of Mr.
xx
& Ms. to entitle her to file a derivative suit on behalf of the
V. AFFIRMATIVE ALLEGATIONS/DEFENSES corporation. Where the statements of the private
respondents were qualified with phrases such as, “insofar
Respondents respectfully allege by way of Affirmative as they are limited, qualified and/or expanded by,” “the
Allegations/Defenses, that x x x x truth being as stated in the Affirmative
3. Fortunately, respondent Apostol was able to convince Mr. Allegations/Defenses of this Answer” they cannot be
Luis Villafuerte to take interest in the business and he, together considered definite and certain enough, cannot be
7
with the original investors, restructured the Ex Libris Publishing construed as judicial admissions.
Company by organizing a new corporation known as Mr. & Ms. More so, the affirmative defenses of private respondents
Publishing Co., Inc. x x x x Mr. Luis Villafuerte contributed his directly refute the representation of petitioner that she is a
own P100,000.00. JAKA and respondent Jose Z. Apostol, original true and genuine stockholder of Mr. & Ms. by stating
investors of Ex Libris contributed P100,000.00 each; Ex Libris unequivocally that petitioner is not the true party to the
Publishing Company was paid 800 shares for the name of Mr. & case but JAKA which continues to be the true stockholder
Ms. magazine and goodwill. Thus, the original stockholders of of Mr. & Ms. In fact, one of the reliefs which private
respondent Mr. & Ms. were: respondents prayed for
519
_______________

VOL. 292, JULY 13, 1998 519 7 Almer v. Hobart Corp. (Mo App) 849 SW2d 135, CCH Prod Liab Rep
13550 cited in 29A Am Jur 2d, p. 137.
Bitong vs. Court of Appeals (Fifth Division)
520
Cert./No./Date Name of Stockholder No. of %
Shares
520 SUPREME COURT REPORTS ANNOTATED
001-9-15-76 JAKA Investments 1,000 21%
Corp. Bitong vs. Court of Appeals (Fifth Division)
002-9-15-76 Luis Villafuerte 1,000 21%
003-9-15-76 Ramon L. Siy 1,000 21% was the dismissal of the petition on the ground that
petitioner did not have the legal interest to initiate and
004-9-15-76 Jose Z. Apostol 1,000 21% 005-9-15-
76 prosecute the same.
When taken in its totality, the Amended Answer to the
  Ex Libris Publishing 800 16%
Co. Amended Petition, or even the Answer to the Amended
Petition alone, clearly raises an issue as to the legal
    4,800 96%
personality of petitioner to file the complaint. Every alleged
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admission is taken as an entirety of the fact which makes
for the one side with the qualifications which limit, modify
or destroy its effect on the other side. The reason for this is,
where part of a statement of a party is used against him as
an admission, the court should weigh any other portion
connected with the statement, which tends to neutralize or
explain the portion which is against interest.
In other words, while the admission is admissible in
evidence, its probative value is to be determined from the
whole statement and others intimately related or connected
therewith as an integrated unit. Although acts or facts
admitted do not require proof and cannot be contradicted,
however, evidence aliunde can be presented to show8 that
the admission was made through palpable mistake. The
rule is always in favor of liberality in construction of
pleadings so that the real matter in 9
dispute may be
submitted to the judgment of the court.
Petitioner also argues that since private respondents
failed to appeal the 6 December 1990 Order and the 3
August 1993 Decision of the SEC Hearing Panel declaring
that she was the real party-in-interest and had legal
personality to sue, they are now estopped from questioning
her personality.
Not quite. The 6 December 1990 Order is clearly an
interlocutory order which cannot be considered as having
finally resolved on the merits the issue of legal capacity of
petitioner. The SEC Hearing Panel discussed the issue of
legal capacity
_______________
8 Granada v. PNB, No. L-20745, 2 September 1966, 18 SCRA 1.
9 Gaspar v. Dorado, No. L-17884, 29 November 1965, 15 SCRA 331.
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
solely for the purpose of ruling on the application for writ of
preliminary injunction as an incident to the main issues
raised in the complaint. Being a mere interlocutory order,
it is not appealable.
For, an interlocutory order refers to something between
the commencement and end of the suit which decides some
point or matter but it is not the final decision of the whole
10
controversy. Thus, even though the 6 December 1990
Order was adverse to private respondents, they had the
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legal right and option not to elevate the same to the SEC
En Banc but rather to await the decision which resolves all
the issues raised by the parties and to appeal therefrom by
assigning all errors that might have been committed by the
Hearing Panel.
On the other hand, the 3 August 1993 Decision of the
Hearing Panel dismissing the derivative suit for failure to
prove the charges of mismanagement, fraud, disloyalty and
conflict of interest and dissolving the writ of preliminary
injunction, was favorable to private respondents. Hence,
they were not expected to appeal therefrom.
In fact, in the 3 August 1993 Decision, the Hearing
Panel categorically stated that the evidence presented
showed that the real party-in-interest was not petitioner
Bitong but JAKA and/or Senator Enrile. Petitioner was
merely allowed to prosecute her complaint so as not to
sidetrack “the real issue to be resolved (which) was the
allegation of mismanagement, fraud and conflict of interest
allegedly committed by respondent Eugenia D. Apostol.” It
was only for this reason that petitioner was considered to
be capacitated and competent to file the petition.
Accordingly, with the dismissal of the complaint of
petitioner against private respondents, there was no
compelling reason for the latter to appeal to the SEC En
Banc. It was in fact petitioner’s turn as the aggrieved party
to exercise her right to appeal from the decision. It is
worthy to note that even during the appeal of petitioner
before the SEC En Banc
_______________
10 Black’s Law Dictionary, Fifth Edition, p. 731.
522
521
522 SUPREME COURT REPORTS ANNOTATED
521 Bitong vs. Court of Appeals (Fifth Division)
private respondents maintained their vigorous objection to
the appeal and reiterated petitioner’s lack of legal capacity
to sue before the SEC.
Petitioner then contends that she was a holder of the
proper certificates of shares of stock and that the transfer
was recorded in the Stock and Transfer Book of Mr. & Ms.
She invokes Sec. 63 of The Corporation Code which
provides that no transfer shall be valid except as between
the parties until the transfer is recorded in the books of the
corporation, and upon its recording the corporation is
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bound by it and is estopped to deny the fact of transfer of
said shares. Petitioner alleges that even in the absence of a
stock certificate, a stockholder solely on the strength of the
recording in the stock and transfer book can exercise all the
rights as stockholder, including the right to file a derivative
suit in the name of the corporation. And, she need not
present a separate deed of sale or transfer in her favor to
prove ownership of stock.
Section 63 of The Corporation Code expressly provides—
Sec. 63. Certificate of stock and transfer of shares.—The capital
stock of stock corporations shall be divided into shares for which
certificates signed by the president or vice president,
countersigned by the secretary or assistant secretary, and sealed
with the seal of the corporation shall be issued in accordance with
the by-laws. Shares of stock so issued are personal property and
may be transferred by delivery of the certificate or certificates
indorsed by the owner or his attorney-in-fact or other person
legally authorized to make the transfer. No transfer however shall
be valid except as between the parties until the transfer is
recorded in the books of the corporation showing the names of the
parties to the transaction, the date of the transfer, the number of
the certificate or certificates and the number of shares transferred
xxxx
This provision above quoted envisions a formal certificate
of stock which can be issued only upon compliance with
certain requisites. First, the certificates must be signed by
the president or vice-president, countersigned by the
secretary or assistant secretary, and sealed with the seal of
the corporation. A mere typewritten statement advising a
stockholder of
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
the extent of his ownership in a corporation without
qualification and/or authentication cannot be considered as
11
a formal certificate of stock. Second, delivery of the
certificate is an essential element of its issuance. Hence,
there is no issuance of a stock certificate where it is never
detached from the stock books although blanks therein are
properly filled up if the person whose name is inserted 12
therein has no control over the books of the company.
Third, the par value, as to par value shares, or the full
subscription as to no par value shares, must first be fully
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paid. Fourth, the original certificate must be surrendered
where the person requesting the issuance of a certificate is
a transferee from a stockholder.
The certificate of stock itself once issued is a continuing
affirmation or representation that the stock described
therein is valid and genuine and is at least prima facie
evidence that it was legally issued in the absence of
evidence to 13the contrary. However, this presumption may
be rebutted. Similarly, books and records of a corporation
which include even the stock and transfer book are
generally admissible in evidence in favor of or against the
corporation and its members to prove the corporate acts, its
financial status and other matters including one’s status as
a stockholder. They are ordinarily the best evidence of
corporate acts and proceedings.
However, the books and records of a corporation are not
conclusive even against the corporation but are prima facie
evidence only. Parol evidence may be admitted to supply
omissions in the records, explain ambiguities, or show what
transpired where no records were kept, or in some cases
14
where such records were contradicted. The effect of
entries in the books of the corporation which purport to be
regular
_______________
11 SEC Opinion, 20 October 1970 in Sehwani Investment &
Management Co., cited in Lopez, R., The Corporation Code of the
Philippines, Vol. 2, 1994 Ed.
12 Tuason v. La Previsora Filipina, 67 Phil. 36 [1938].
13 Fletcher, William Meade, Encyclopedia of the Law of Private
Corporations, Vol. V, p. 5768.
523 14 18 AmJur 2d 706.
524
523
524 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
records of the proceedings of its board of directors or
stockholders can be destroyed by testimony of a more
conclusive character than mere suspicion that there was 15an
irregularity in the manner in which the books were kept.
The foregoing considerations are founded on the basic
principle that stock issued without authority and in
violation of law is void and confers no rights on the person
16
to whom it is issued and subjects him to no liabilities.
Where there is an inherent lack of power in the corporation
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to issue the stock, neither the corporation nor the person to
whom the stock is issued is estopped to question its validity
since an estoppel cannot operate to 17
create stock which
under the law cannot have existence.
As found by the Hearing Panel and affirmed by
respondent Court of Appeals, there is overwhelming
evidence that despite what appears on the certificate of
stock and stock and transfer book, petitioner was not a
bona fide stockholder of Mr. & Ms. before March 1989 or at
the time the complained acts were committed to qualify her
to institute a stockholder’s derivative suit against private
respondents. Aside from petitioner’s own admissions,
several corporate documents disclose that the true party-
in-interest is not petitioner but JAKA.
Thus, while petitioner asserts in her petition that
Certificate of Stock No. 008 dated 25 July 1983 was issued
in her name, private respondents argue that this certificate
was signed by respondent Eugenia D. Apostol as President
only in 1989 and was fraudulently antedated by petitioner
who had possession of the Certificate Book and the Stock
and Transfer Book. Private respondents stress that
petitioner’s counsel entered into a stipulation on record
before the Hearing Panel that the certificate was indeed
signed by respondent Apostol only in 1989 and not in 1983.
_______________
15 Id., p. 707.
16 See Note 13, p. 5765.
17 Id., p. 5774.
525
VOL. 292, JULY 13, 1998 525
Bitong vs. Court of Appeals (Fifth Division)
In her reply, petitioner admits that while respondent
Eugenia D. Apostol signed the Certificate of Stock No. 008
in petitioner’s name only in 1989, it was issued by the
corporate secretary in 1983 and that the other certificates
covering shares in Mr. & Ms. had not yet been signed by
respondent Eugenia D. Apostol at the time of the filing of
the complaint with the SEC although they were issued
years before.
Based on the foregoing admission of petitioner, there is
no truth to the statement written in Certificate of Stock
No. 008 that the same was issued and signed on 25 July
1983 by its duly authorized officers specifically the
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President and Corporate Secretary because the actual date
of signing thereof was 17 March 1989. Verily, a formal
certificate of stock could not be considered issued in
contemplation of law unless signed by the president or vice-
president and countersigned by the secretary or assistant
secretary.
In this case, contrary to petitioner’s submission, the
Certificate of Stock No. 008 was only legally issued on 17
March 1989 when it was actually signed by the President of
the corporation, and not before that date. While a
certificate of stock is not necessary to make one a
stockholder, e.g., where he is an incorporator and listed as
stockholder in the articles of incorporation although no
certificate of stock has yet been issued, it is supposed to
serve as paper representative of the stock itself and of the
owner’s interest therein. Hence, when Certificate of Stock
No. 008 was admittedly signed and issued only on 17
March 1989 and not on 25 July 1983, even as it indicates
that petitioner owns 997 shares of stock of Mr. & Ms., the
certificate has no evidentiary value for the purpose of
proving that petitioner was a stockholder since 1983 up to
1989.
And even the factual antecedents of the alleged
ownership by petitioner in 1983 of shares of stock of Mr. &
Ms. are indistinctive if not enshrouded in inconsistencies.
In her testimony before the Hearing Panel, petitioner said
that early in 1983, to relieve Mr. & Ms. from political
pressure, Senator Enrile decided to divest the family
holdings in Mr. & Ms. as he was then part of the
government and Mr. & Ms. was evolving to be
526
526 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
an opposition newspaper. The JAKA shares numbering
1,000 covered by Certificate of Stock No. 001 were thus
transferred
18
to respondent Eugenia D. Apostol in trust or in
blank.
Petitioner now claims that a few days after JAKA’s
share were transferred to respondent Eugenia D. Apostol,
Senator Enrile sold to petitioner 997 shares of JAKA. For
this purpose, a19 deed of sale was executed and antedated to
10 May 1983. This submission of petitioner is however
contradicted by the records which show that a deed of sale
was executed by JAKA transferring 1,000 shares of Mr. &
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Ms. to respondent
20
Apostol on 10 May 1983 and not to
petitioner.
Then Senator Enrile testified that in May or June 1983
he was asked at a media interview if his family owned
shares of stock in Mr. & Ms. Although he and his family
were stockholders at that time he denied it so as not to
embarrass the magazine. He called up petitioner and
instructed her to work out the documentation of the
transfer of shares from JAKA to respondent Apostol to be
covered by a declaration of trust. His instruction was to
transfer the shares of JAKA in Mr. & Ms. and Ex Libris to
respondent Apostol as a nominal holder. He then 21
finally
decided to transfer the shareholdings to petitioner.
When asked if there was any document or any written
evidence of that divestment in favor of petitioner, Senator
Enrile answered that there was an endorsement of the
shares of stock. He said that there was no other document
evidencing the assignment to petitioner because the stocks
were personal
22
property that could be transferred even
orally. Contrary to Senator Enrile’s testimony, however,
petitioner maintains that Senator Enrile executed a deed of
sale in her favor.
_______________
18 TSN, 24 August 1989, pp. 38-39; 6 April 1990, pp. 10-11.
19 Petition for Review on Certiorari before this Court, p. 10; Rollo, p. 87.
20 Exh. “21” for petitioner.
21 TSN, 20 August 1990, pp. 5-18.
22 Id., p. 40.
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
A careful perusal of the records shows that neither the
alleged endorsement of Certificate of Stock No. 001 in the
name of JAKA nor the alleged deed of sale executed by
Senator Enrile directly in favor of petitioner could have
legally transferred or assigned on 25 July 1983 the shares
of stock in favor of petitioner because as of 10 May 1983
Certificate of Stock No. 001 in the name of JAKA was
already cancelled and a new one, Certificate of Stock No.
007, issued in favor of respondent Apostol
23
by virtue of a
Declaration of Trust and Deed of Sale.
It should be emphasized that on 10 May 1983 JAKA
executed a deed of sale over 1,000 Mr. & Ms. shares in
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favor of respondent Eugenia D. Apostol. On the same day,
respondent Apostol signed a declaration of trust stating
that she was the registered owner of 1,000 Mr. & Ms.
shares covered by Certificate of Stock No. 007.
The declaration of trust further showed that although
respondent Apostol was the registered owner, she held the
shares of stock and dividends which might be paid in
connection therewith solely in trust for the benefit of
JAKA, her principal. It was also stated therein that being a
trustee, respondent Apostol agreed, on written request of
the principal, to assign and transfer the shares of stock and
any and all such distributions or dividends unto the
principal or such other person as the principal would
nominate or appoint.
Petitioner was well aware of this trust, being the person
in charge of this documentation and being24 one of the
witnesses to the execution of this document. Hence, the
mere alleged endorsement of Certificate of Stock No. 001 by
Senator Enrile or by a duly authorized officer of JAKA to
effect the transfer of shares of JAKA to petitioner could not
have been legally feasible because Certificate of Stock No.
001 was already canceled by virtue of the deed of sale to
respondent Apostol.
_______________
23 Exhs. 21 and 21-A for Private Respondents.
24 Rollo, p. 201.
528
527
528 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
527
And, there is nothing in the records which shows that
JAKA had revoked the trust it reposed on respondent
Eugenia D. Apostol. Neither was there any evidence that
the principal had requested her to assign and transfer the
shares of stock to petitioner. If it was true that the shares
of stock covered by Certificate of Stock No. 007 had been
transferred to petitioner, the person who could legally
endorse the certificate was private respondent Eugenia D.
Apostol, she being the registered owner and trustee of the
shares of stock covered by Certificate of Stock No. 007. It is
a settled rule that the trustee should endorse the stock
certificate to validate the cancellation of her share and to25
have the transfer recorded in the books of the corporation.
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In fine, the records are unclear on how petitioner
allegedly acquired the shares of stock of JAKA. Petitioner
being the chief executive officer of JAKA and the sole
person in charge of all26 business and financial transactions
and affairs of JAKA was supposed to be in the best
position to show convincing evidence on the alleged
transfer of shares to her, if indeed there was a transfer.
Considering that petitioner’s status is being questioned and
several factual circumstances have been presented by
private respondents disproving petitioner’s claim, it was
incumbent upon her to submit rebuttal evidence on the
manner by which she allegedly became a stockholder. Her
failure to do so taken in the light of several substantial
inconsistencies in her evidence is fatal to her case.
The rule is that the endorsement of the certificate of
stock by the owner or his attorney-in-fact or any other
person legally authorized to make the transfer shall be
sufficient to effect the transfer of shares only if the same is
coupled with delivery. The delivery of the stock certificate
duly endorsed by the owner is the operative act of transfer
of shares from the lawful owner to the new transferee.
_______________
25 Lopez, Rosario, The Corporation Code of the Philippines, vol. II, 1994
ed., p. 824.
26 TSN, 20 August 1990, pp. 31-34.
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
Thus, for a valid transfer of stocks, the requirements are as
follows: (a) There must be delivery of the stock certificate;
(b) The certificate must be endorsed by the owner or his
attorney-in-fact or other persons legally authorized to make
the transfer; and, (c) To be valid against third parties, the
27
transfer must be recorded in the books of the corporation.
At most, in the instant case, petitioner has satisfied only
the third requirement. Compliance with the first two
requisites has not been clearly and sufficiently shown.
Considering that the requirements provided under Sec.
63 of The Corporation Code should be mandatorily
complied with, the rule on presumption of regularity
cannot apply. The regularity and validity of the transfer
must be proved. As it is, even the credibility of the stock
and transfer book and the entries thereon relied upon by
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petitioner to show compliance with the third requisite to
prove that she was a stockholder since 1983 is highly
doubtful.
The records show that the original stock and transfer
book and the stock certificate book of Mr. & Ms. were in the
possession of petitioner before their custody was
transferred
28
to the Corporate Secretary, Atty. Augusto San
Pedro. On 25 May 1988, Assistant Corporate Secretary
Renato Jose Unson wrote Mr. & Ms. about the lost stock
and transfer book which was also noted by the
corporation’s external auditors, Punongbayan and Araullo,
in their audit. Atty. Unson even informed respondent
Eugenia D. Apostol as President of Mr. & Ms. that steps
would be undertaken to prepare and register a new Stock
and Transfer Book with the SEC. Incidentally, perhaps
strangely, upon verification with the SEC, it was
discovered that the general file of the corporation with the
SEC was missing. Hence, it was even possible that the
original Stock and Transfer Book might not have been
registered at all.
On 20 October 1988 respondent Eugenia D. Apostol
wrote Atty. Augusto San Pedro noting the changes he had
made in
_______________
27 See Note 25, pp. 803-807.
28 Exh. “35” for private respondents.
529
530
529
530 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
the Stock and Transfer
29
Book without prior notice to the
corporate officers. In the 27 October 1988 directors’
meeting, respondent Eugenia D. Apostol asked about the
documentation to support the changes in the Stock and
Transfer Book with regard to the JAKA shares. Petitioner
answered that Atty. San Pedro made the changes upon 30
her
instructions conformably with established practice.
This simply shows that as of 1988 there still existed
certain issues affecting the ownership of the JAKA shares,
thus raising doubts whether the alleged transactions
recorded in the Stock and Transfer Book were proper,
regular and authorized. Then, as if to magnify and
compound the uncertainties in the ownership of the shares
of stock in question, when the corporate secretary resigned,
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the Stock and Transfer Book was delivered not to the
corporate 31office where the book should be kept but to
petitioner.
That JAKA retained its ownership of its Mr. & Ms.
shares was clearly shown by32 its receipt of the dividends
issued in December 1986. This only means, very
obviously, that Mr. & Ms. shares in question still belonged
to JAKA and not to petitioner. For, dividends are
distributed to stockholders pursuant to their right to share
in corporate profits. When a dividend is declared, it belongs
to the person who is the substantial and beneficial owner of
the stock at the time
33
regardless of when the distribution
profit was earned.
Finally, this Court takes notice of the glaring and open
admissions of petitioner made, not just seven (7) but nine
(9) times, during the 22 September 1988 meeting of the
board of directors that the Enriles were her principals or
shareholders,34
as shown by the minutes thereof which she
duly signed —
_______________
29 Exh. “30” for private respondents.
30 Exh. “31” for private respondents.
31 Exh. “36” for private respondents.
32 Exh. “26-B” for private respondents.
33 Agbayani, Aguedo F., Commercial Laws of the Philippines, vol. III,
1988 Ed., p. 409.
34 Exh. “F” for petitioner.
VOL. 292, JULY 13, 1998
Bitong vs. Court of Appeals (Fifth Division)
5. Mrs. E. Apostol explained to the Directors that through her
efforts, the asset base of the Company has improved and profits
were realized. It is for this reason that the Company has declared
a 100% cash dividend in 1986. She said that it is up for the Board
to decide based on this performance whether she should continue
to act as Board Chairman or not. In this regard, Ms. N.A. Bitong
expressed her recollection of how Ex-Libris/Mr. & Ms. were
organized and her participation for and on behalf of her
principals, as follows: She recalled that her principals were
invited by Mrs. E. Apostol to invest in Ex-Libris and eventually
Mr. & Ms. The relationship between her principals and Mrs. E.
Apostol made it possible for the latter to have access to several
information concerning certain political events and issues. In
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many instances, her principals supplied first hand and
newsworthy information that made Mr. & Ms. a popular paper x x
xx
6. According to Ms. Bitong, her principals were instrumental in
helping Mr. & Ms. survive during those years that it was cash
strapped x x x x Ms. N.A. Bitong pointed out that the practice of
using the former Minister’s influence and stature in the
government is one thing which her principals themselves are
strongly against x x x x
7. x x x x At this point, Ms. N. Bitong again expressed her
recollection of the subject matter as follows: (a) Mrs. E. Apostol,
she remembers, brought up the concept of a cooperative-ran
newspaper company in one of her breakfast sessions with her
principals sometime during the end of 1985. Her principals when
asked for an opinion, said that they recognized the concept as
something very noble and visible x x x x Then Ms. Bitong asked a
very specific question—“When you conceptualized Ex-Libris and
Mr. & Ms., did you not think of my shareholders the Ponce Enriles
as liabilities? How come you associated yourself with them then
and not now? What is the difference?” Mrs. Apostol did not
answer the question.
The admissions of a party against his interest inscribed
upon the record books of a corporation
35
are competent and
persuasive evidence against him. These admissions
render nugatory any argument that petitioner is a bona
fide stockholder of Mr. & Ms. at any time before 1988 or at
the time the acts complained of were committed. There is
no doubt that
531
_______________
35 See Note 25.
531
532
532 SUPREME COURT REPORTS ANNOTATED
Bitong vs. Court of Appeals (Fifth Division)
petitioner was an employee of JAKA as its 36 managing
officer, as testified to by Senator Enrile himself. However,
in the absence of a special authority from the board of
directors of JAKA to institute a derivative suit for and in
its behalf, petitioner is disqualified by law to sue in her
own name. The power to sue and be sued in any court by a
corporation even as a stockholder is lodged in the board of
directors that exercises its 37corporate powers and not in the
president or officer thereof.
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It is well settled in this jurisdiction that where corporate prohibition filed by respondent Edgardo B. Espiritu as well
directors are guilty of a breach of trust, not of mere error of as annulling the 5 November 1993, 24 January 1994 and
judgment or abuse of discretion, and intracorporate remedy 18 February 1994 Orders of the SEC En Banc in CA-G.R.
is futile or useless, a stockholder may institute a suit in No. SP 33873, is AFFIRMED. Costs against petitioner.
behalf of himself and other stockholders and for the benefit SO ORDERED.
of the corporation, to bring about a redress of the wrong
inflicted directly 38
upon the corporation and indirectly upon           Davide, Jr. (Chairman), Vitug and Quisumbing,
the stockholders. The stockholder’s right to institute a JJ., concur.
derivative suit is not based on any express provision of The      Panganiban, J., No part. Participated, as a former
Corporation Code but is impliedly recognized when the law practising lawyer, in negotiations to buy subject shares.
makes corporate directors or officers liable for damages
suffered by the corporation and its stockholders for Petition denied. Judgment and orders affirmed.
violation of their fiduciary duties. Notes.—Section 28 1/2 of the Corporation Law (now
Hence, a stockholder may sue for mismanagement,
Section 40 of the Corporation Code) requiring authorization
waste or dissipation of corporate assets because of a special
39 of the stockholders of record for action taken by the board
injury to him for which he is otherwise without redress. In of directors applies to the sale, lease, exchange or
effect, the suit is an action for specific performance of an disposition of all or substantially all of the corporation’s
obligation owed by the corporation to the stockholders to assets. (Lopez Realty, Inc. vs. Fontecha, 247 SCRA 183
assist its rights of action when the corporation has been
[1995])
put in default by the

_______________
_______________
40 Ashwander v. Tennessee Valley Authority, 297 US 728, 80 L Ed 1011,
36 See Note 26.
56 Sup Ct 588.
37 See Note 33, citing RP v. Phil. Resources Development Corp., G.R. No.
41 SMC, represented by Eduardo de los Angeles v. Kahn, G.R. No.
10141, 31 January 1958.
85339, 11 August 1989, 176 SCRA 461.
38 Pascual v. Del Sanz Orozeo, 19 Phil. 82 (1911).
39 See Note 11, p. 853, citing Mimnaugh v. Atlantic City Electric Co., 7 534
NJ Super 310, Super 310, 70A (2d) 904.

533 534 SUPREME COURT REPORTS ANNOTATED

Darvin vs. Court of Appeals
VOL. 292, JULY 13, 1998 533
Bitong vs. Court of Appeals (Fifth Division)
It is the corporate secretary’s duty and obligation to
register valid transfers of stocks and if said corporate
officer refuses to comply, the transferor-stockholder may
wrongful refusal of the directors or40 management to make rightfully bring suit to compel performance. (Torres, Jr. vs.
suitable measures for its protection. Court of Appeals, 278 SCRA 793 [1997])
The basis of a stockholder’s suit is always one in equity.
However, it cannot prosper without first complying with ——o0o——
the legal requisites for its institution. The most important
of these is the bona fide ownership by a stockholder of a
stock in his own right at the time of the transaction
complained of which invests him with standing to institute
41
a derivative action for the benefit of the corporation.
WHEREFORE, the petition is DENIED. The 31 August
1995 Decision of the Court of Appeals dismissing the © Copyright 2020 Central Book Supply, Inc. All rights reserved.
complaint of petitioner Nora A. Bitong in CA-G.R. No. SP
33291, and granting the petition for certiorari and
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